The Volokh Conspiracy
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Court Rejects Lawsuit Against Church for Disclosing Member's 30-Year-Past Touching of 15-Year-Old's Penis
From Tharp v. Hillcrest Baptist Church of Columbus, decided Dec. 27 by the Ohio Court of Appeals (Judge Keith McGrath, joined by Judges Julia Dorrian & Michael Mentel):
This is an appeal by plaintiff-appellant, Kevin Tharp, from a decision … in favor of defendants-appellees Hillcrest Baptist Church of Columbus, Ohio … and [Pastor] Timothy W. Lee ….
According to the allegations in appellant's amended complaint, "on August 21, 2017, * * * Pastor Lee, a reverend with the Church, held a private conference where '[Pastor] Lee asked [appellant] about a past encounter that occurred with another Hillcrest Baptist Church congregant over thirty years ago.'" The meeting was prompted because a current attendee of the church, "now an adult, had recently recognized [appellant] as the man that sexually molested him when he was fifteen years old." Although appellant's complaint "blandly describes this sexual abuse as 'a past encounter,' [appellant] admitted in discovery to a pattern of sexually abusing young boys."
During his deposition testimony, appellant "admitted having previously molested the then-teen." Specifically, appellant testified he touched this individual in the "[g]roin area," and acknowledged that he touched this individual's penis. According to appellant's deposition, this was not "the only minor that [appellant] abused." …
The trial court found that "[d]espite admitting to sexually abusing minors while they slept," appellant "took exception to characterizing that conduct as molestation." When asked during his deposition if he considered his conduct "to be molestation," appellant responded "[n]o," stating there was "no sexual intent." Appellant characterized his intent as "[s]howing affection." When asked why he touched the groin area, appellant stated: "Most pleasurable part for a person of the male species."
After confronting appellant "with this history, Pastor Lee held an emergency meeting at the Church to discuss [appellant's] admitted history of sexual abuse." During that meeting, "Pastor Lee informed the congregation that he'd consulted with professionals at Netcare, who opined in turn that [appellant] had an incurable disease, and that his conduct at the Church amounted to grooming children." … [T]he Hillcrest Board of Trustees, referred to as the 'Vision Team' at Hillcrest * * * convened a meeting and voted to remove [appellant] from church leadership and church membership." …
The Court of Appeals held that a secular American court had no jurisdiction over Tharp's ejection from the church:
[M]atters of "[c]hurch discipline, ecclesiastical government, or 'the conformity of the members of the church to the standard of morals required of them' is beyond the scope of review by a secular tribunal." Stated otherwise, "secular courts will not inquire into whether disfellowship or expulsion from church membership was in accordance with church by-laws or regulations."
Upon review, we find no error with the trial court's determination that, based on the allegations presented, it was "unable to adjudicate the presence or absence of circumstances so irreconcilable with articles of faith as might necessitate procedural deviation from ordinary decision-making per the internal bylaws," nor would it be able, under neutral principles of law, to "assess ultimate substantive ecclesiastical questions regarding membership and participation." As recognized by the trial court, the instant dispute, involving questions as to the propriety of church discipline and the "theological weight to be given to particular faith infractions," would necessarily require the review of ecclesiastical matters over which the court lacked subject-matter jurisdiction.
And it rejected Tharp's defamation claims:
The trial court found, even assuming appellant could demonstrate the statements at issue were defamatory, they were made pursuant to a qualified privilege. In finding that appellees were protected by a qualified privilege, the trial court noted the summary judgment evidence indicated that "Pastor Lee, as the leader of his congregation, brought [appellant's] admissions to Church Leadership and the parents of children who had interactions with [appellant]." The trial court held in part: "Clearly, Pastor Lee had a duty to make this disclosure in order to protect the members of his congregation. This is especially true given the fact that the individual who recognized [appellant] was concerned that [appellant] was engaging in the same grooming behaviors with the children of the congregation that he had experienced when he was a teenager." The trial court further found "Pastor Lee did not share [appellant's] prior misconduct of abusing children beyond those who had a legitimate interest in knowing." Finally, the trial court addressed the issue of malice, finding "there is no record evidence that Pastor Lee's statements were made with either knowledge that the statements were false or reckless disregard as to their truth or falsity." …
It is well-settled that "[t]he purpose of a qualified privilege is to protect speakers in circumstances where there is a need for full and unrestricted communication concerning a matter in which the parties have an interest or duty." … [W]e find no error with the trial court's determination that "Pastor Lee had a duty to make this disclosure in order to protect the members of his congregation" (i.e., that the statements at issue were protected as communications in which the speaker had an interest in the subject matter and a duty to convey to the recipients sharing a common interest in the communications)….
Further, we agree with the trial court that the evidence on summary judgment did not create a genuine issue of material fact as to whether appellees acted with malice. Under Ohio law, where a defendant has a qualified privilege regarding statements, "that privilege can be defeated only by a clear and convincing showing that the communication was made with actual malice." In such a "qualified privilege case, 'actual malice' is defined as acting with knowledge that the statements are false or acting with reckless disregard to their truth or falsity." …
As previously discussed, the statements at issue were motivated by a "church interest," i.e., involving an underlying church discipline matter, as well as an interest in protecting minors. Further, the statements at issue had a "factual foundation" based on appellant's own admissions as to his past activity.
The court rejected Tharp's claim for "breach of confidentiality":
While appellant appears to equate the conduct at issue to a clergy's obligations to maintain the confidentiality of a penitent's confession, the facts on summary judgment do not support such a characterization. Specifically, the undisputed facts do not indicate that appellant sought out Pastor Lee for counseling or to confess a past sin; rather, Pastor Lee, after learning of the past conduct of appellant from a current congregant, sought out appellant to inquire about the truth of those allegations. As noted by appellees, the summary judgment evidence does not suggest appellant was seeking spiritual consultation, nor did Pastor Lee provide testimony as to a confession or confidential communication made for religious counseling. Accordingly, the trial court did not err in granting summary judgment in favor of appellees as to appellant's claim for breach of confidentiality.
And the court rejected Tharp's intentional infliction of emotional distress claim:
[A]ppellant contends he suffered emotional distress as a result of Pastor Lee informing the congregation he had an incurable disease when the only support for this contention was the "supposed unnamed 'professionals' who had never seen or interacted with [appellant]."
The record on summary judgment fails to create a genuine issue of material fact that the conduct at issue, arising out of an internal church investigation, rose to the level of extreme and outrageous behavior necessary to support a claim for intentional infliction of emotional distress, nor does the record present a genuine issue of material fact as to whether appellees' intent, based on concerns pertaining to the protection of minors, was to cause appellant emotional distress. Further, we have previously determined, as did the trial court, that the communications at issue were protected by a qualified privilege.
Congratulations to Melvin Davis (Reminger Co.), who represented the defendants.
